Smith v. Dare

Page, J., delivered the opinion of the Court. In October, 1895, Dare and wife leased to William T. Bishop a certain farm, situate in Queen Anne’s County, for the years 1896 and 1897, at an annual rent of six hundred dollars, payable semi-annually on the first days of August and January of each year. On the twenty-seventh day of November, 1895, the Dares executed a power of attorney to David P. Smith, the appellant, by which Smith was appointed the agent “ to attend to ” the farm, collect the rents “ when due,” &c.; for which he was to receive a compensation of five per cent, of the gross rents. Shortly after the making of this instrument, Smith began to make advances to the Dares, so that on the seventeenth of February, 1897, they were indebted to him on that account (including interest) about $882.50, all of which advances were made on or before the 23rd of January, 1897.

On the 23rd of April, 1898, the Dares by their deed duly acknowledged and recorded, revoked the power of attorney and authority, theretofore given to the appellant, and on the thirtieth of the same month granted unto William S. Isaacs the said farm, in trust, to collect the rents and profits, and after paying the expenses of the trust, including commissions, “ to pay over the net balance to the aforesaid Mattie J. Dare, during the term of her natural life. ” It is agreed by the parties that the last-mentioned deed was made to protect Isaacs, “ in debts due by them (the Dares.) to him.” The rent due from Bishop in August, 1897, not being paid, Isaacs began proceedings in distress, and the constable, one Robert Coursey, by virtue thereof seized ⁴⁹ the personalty of the tenant and took it into his possession. The appellant, who was complainant below, seeks by this proceeding to enjoin further proceedings under the warrant of distress; to secure the appointment of a receiver to collect the rents from the tenant now due or hereafter to become due for the year 1897, the same to be applied when brought into Court to the reimbursement of the complainant on account of the sums advanced; and such other relief as his case may require. The principal question in the case is, whether the power of attorney, under all the circumstances of the case, was revocable by the Dares, without the assent of the complainant. The Court below held that it was, and that it had been effectually revoked by the paper executed by the Dares on the second day of April, 1897, and therefore passed a decree dissolving the inj unction theretofore issued.

From this decree the appellant has appealed. The appellant’s counsel contends, that the power conferred upon Smith is “ more than an authority;” that by a proper construction of the instrument by which it was conferred, it must be held that the parties contemplated that he was to make advances, and the power to collect the rents was conferred upon him to secure him in so doing; that the Dares intended the contract for Smith’s protection, and that therefore to set it aside, after Smith had made the advances and before he had been reimbursed, required something more than the pleasure of the Dares, who had “ reaped handsome benefits from it.” But this contention is not sustainable. We think it clear that the contract contained in the instrument did not impose upon Smith the obligation of making advances. The full text of the instrument is as follows: “ 1st.

The said David P. Smith, of Centreville, Queen Anne’s County, Md., is hereby empowered or appointed as the agent for the parties of the first part to attend to farm situate in. Queen Anne’s Co., Md., now in the tenancy of Wm. T.. Bishop.

Is to collect rents when due, and refund same to> ⁵⁰ the parties of the ist part, after such moneyas is necessary for the benefit of the farm has been deducted. Proper judgment to be used when an expense is thought necessary. The said D. P. Smith not to advance any rents before due, except when absolutely convenient, and not to pay any debts contracted before Jan. ist, 1896. The compensation for the above duty shall be five per cent, of gross rents; and this contract is in force until Jan. ist, 1898.” No obligation to make advances can be implied from any of the duties that this paper imposes on Smith.

He is to collect the rents when due, “ and refund the same ” to the Dares when such sum as may be necessary for the benefit of the farm has been deducted; and